02 January 2016

Because of the absurdly and unjustifiably secret nature of the TAFTA/TTIP negotiations, piecing together what is going on is a matter of looking for scraps of information wherever they can be found, and then trying to piece together the bigger picture. In my lasttwoupdates, I analysed some interesting attacks that the European Commission made on articles that dared to be sceptical about TTIP. In this one, I'll examine another important source: meetings with those that are privy to the negotiations.

It was held just before Christmas, and is reported here by Ulf Pettersson, policy advisor to the Pirate Party MEP, Amelia Andersdotter:

Taking place at the American Chamber of Commerce offices in Brussels, the purpose of the two hour exchange was to strategize between businesses and the Commission in order to make sure that the maximum level of new IP restrictions will be written into the treaty. Present at the meeting were representatives from a range of the very largest multinational corporations. Among these were TimeWarner, Microsoft, Ford, Eli Lilly, AbbVie (pharmaceutical, formerly Abbott) and the luxury conglomerate LMVH. The participant list also included representatives from Nike, Dow, Pfizer, GE, BSA and Disney - among others. Also present was Patrice Pellegrino from OHIM [Office for Harmonization in the Internal Market], the EU/Commission agency responsible for trade marks in the EU.

Controversially, the supposedly neutral Commission negotiator [for Intellectual Property in TTIP, Pedro Velasco Martins] and the OHIM representative not only defined themselves as allies with the businesses lobbyists. They went far beyond this and started to instruct the representatives in detail on how they should campaign to "educate" the public in order to maximise their outcome in terms of industry monopoly rights. In particular, concerns from elected representatives, such as the European Parliament -- as well as civil society criticisms about ever increasing intellectual property rights -- were to be kept out of the public debate.

It turns out that this alliance between the European Commission and major companies like Microsoft is not simply at the general level: the meeting revealed the existence of an explicit "Christmas list" of new demands in the area of intellectual monopolies – principally patents and copyright. As Petterson points out, that's hugely significant:

Previously - towards the public and the Parliament - the Commission has created the impression that intellectual property rights will be downplayed. The only IP right mentioned has been geographical indications, a minor issue which few are concerned about. In reality, the Commission now revealed that they have received "quite a Christmas list of items" on IP from corporate lobbyists and that they are working to implement this list. The list has already been discussed with the US in several meetings, in person as well as online.

The Christmas list covers almost every major intellectual property right. On patents, industry had shown "quite an interest" especially on the procedures around the granting of new patents. On copyrights the industry wants to have the "same level of protection" in the US and EU; in reality this always means harmonization up which results in more restrictions for the general public.

This is really quite shocking, because the Commissioner with overall responsbility for TAFTA/TTIP, Karel De Gucht has explicitly stated that TTIP will not be ACTA by the backdoor:

ACTA, one of the nails in my coffin. I'm not going to reopen that discussion. Really, I mean, I am not a masochist. I'm not planning to do that.

If the Commission advances new basic legislation, which I think she should, we will revisit the question, but I'm not going to do this by the back door.

And yet ACTA by the backdoor is precisely what one of the EU's senior negotiators seems to be suggesting is coming:

According to the negotiator, the most repeated request on the Christmas list was in "enforcement". Concerning this, companies had made requests to "improve and formalize" as well as for the authorities to "make statements". The Commission negotiator said that although joint 'enforcement statements' do not constitute "classical trade agreement language" -- a euphemism for things that do not belong in trade agreements -- the Commission still looks forward to "working in this area".

Enforcement was one of the most contentious issues in ACTA, and was one of the reasons that the European Parliament killed it off last year. So the big question is: what is going on here? Was De Gucht simply trying to mislead us? Or is one of his staff taking the initiative on his own, and undermining De Gucht's statement that TTIP will not be ACTA by the back door? Presumably we will find out as more information leaks out. But Pettersson's report on this meeting highlights a number of disturbing issues.

First, that the EU's chief negotiator on intellectual monopolies sees US companies as his natural allies, and the European public as the enemy:

The Commission and OHIM officials both made clear they were on the same side as the largely American companies present. At the same time, European consumers and civil society were described as either uneducated or as an enemy that needs to be fought.

If that is really what he really thinks, Martins should have the decency to resign. After all, it is largely the European public that pays his salary, and so this kind of behaviour, if confirmed, is both insulting and ungrateful. In fact, if this is indeed what he said, De Gucht should simply fire him, both for putting the interests of US companies above those of the EU public, and for contradicting what De Gucht has publicly stated.

But the other deeply troubling point is that we don't actually know what the real position of De Gucht or the European Commission is on this, or on anything else. Instead, we are forced to shadow box with what we glean from meetings like the one last December, with all the risks of misunderstandings that this naturally entails. If the European Commission wishes to avoid this, and wants to counteract the impression that it has nothing but contempt for the people that also pay its wages, it should routinely released all tabled EU documents.

After all, once they have been revealed to the US negotiators, tabled documents are no longer secret. That's not least because the US negotiators are believed to share everything with hundreds of companies and lobbyists, which means that the well-connected (and those with good spies) can easily find out what's going on. The only people that are kept in the dark by this process are the ordinary people in whose name the negotiations are theoretically being conducted. That's just unacceptable in an age where transparency and openness are rightly taken for granted.

About Me

I have been a technology journalist and consultant for 30 years, covering
the Internet since March 1994, and the free software world since 1995.

One early feature I wrote was for Wired in 1997:
The Greatest OS that (N)ever Was.
My most recent books are Rebel Code: Linux and the Open Source Revolution, and Digital Code of Life: How Bioinformatics is Revolutionizing Science, Medicine and Business.